Ed Whelan’s Never-Ending Crusade Against LGBT Equality

June 20, 2011 12:14 pm ET by Carlos Maza

National Review Online blogger Ed Whelan has spent the
last sixteen months spearheading a campaign to overturn U.S. District Judge
Vaughn Walker’s 2010 decision in Perry v. Schwarzenegger – the landmark
case which found California’s Proposition 8 to be unconstitutional.

Whelan has consistently asserted that – as a gay man in a
long-term relationship – Walker was a “direct beneficiary” of his decision to
strike down the state’s ban on same-sex marriage. As a result, Whelan argues, Walker
should have either recused himself from the case or disclosed his sexual
orientation and relationship status before the trial started.

Last Tuesday, Whelan’s
campaign suffered a major setback. U.S. District Judge James Ware rejected
a motion to vacate Walker’s decision, arguing that
that doing otherwise would have created “an unworkable standard for
disqualification” and been “detrimental to the integrity of the judiciary.”

Whelan’s First Grumblings

Whelan’s call to have Walker’s decision thrown out
actually began long before the Perry
decision. In February of 2010 – roughly six months before Walker’s initial decision
was released – Whelan claimed that Walker’s
long-term, same-sex relationship was evidence of his “manifest inability to be
impartial.” According to Whelan, Walker was “hellbent”
on using the case to “advance the cause of same-sex marriage.”

This isn’t the first time Whelan has found an excuse
criticize even potentially pro-LGBT legal decisions:

Accusing Kagan, President Obama,
and Attorney General Eric Holder
of attempting to “sabotage” the Defense of Marriage Act through “stealth
measures”

Attacking former judicial
nominee Goodwin Liu for his “absurd”
support for marriage equality

Initially, most supporters of Proposition 8 shied away
from demanding that Walker’s decision be vacated as a result of his sexual
orientation. University of Notre Dame law professor Gerard V. Bradley wrote
that it was “too
late” to bring up issues of how Walker’s sexual orientation would affect
his decision. The National Organization for Marriage (NOM)alsostopped
short of calling for his recusal, insisting that the Supreme Court would be
aware of Walker’s bias if and when the time came for it to rule on the
issue.

They’reaversion to demanding
that Walker’s decision to be vacated was justified:a number of
judicial ethicists agreed that attempting to disqualify Walker from ruling on a
same-sex marriage case simply because he’s in a committed same-sex relationship
is meritless and “ridiculous.”

Growing Momentum

Whelan remained determined, however, to continue his crusade
against Walker. A month before a decision in Perry was announced, Whelan
wrote that the Walker’s potential interest in entering a same-sex marriage in
California raised questions about whether “his impartiality might
reasonably be questioned” and thus justifying his recusal. He also raised
the issue during a radio
interview on August 4, the day Walker’s decision was announced. In
the following months, Whelan made the point again
and again
and again.

Eventually, Prop 8’s defenders decided to include Whelan’s arguments
in their motion to have Judge Walker’s decision vacated (much to Whelan’s delight).

According to Whelan, all of the necessary parts were in
place to finally do away with Walker’s ruling.

When it came time to make the case against Walker’s
impartiality in court, however, things were not so “airtight.” The audience in
the federal courtroom was reported to have burst out laughing
when Prop 8’s proponents asserted that Walker should have disclosed whether he
planned to marry his partner of ten years. Even before Judge Ware’s decision
had been announced, commentators were predicting
that the motion to vacate Walker’s ruling would be denied.

It took Ware less than 24 hours to make his decision,
thoroughly dismissing Whelan’s arguments.

The Crusade Continues

Undeterred as always, Whelan didn’t waste a second
deploying the same tactic he had initially used against Walker: attack the
judge’s credibility even before a decision is handed down.

Hours before Ware
denied the Prop 8 supporters’ motion, Whelan wrote a blog
post (1) predicting that his argument would be rejected (2) criticizing
Ware for lacking the “clarity and courage to do the right thing” and (3)
accusing Ware of being lenient towards Walker because of their long-term
friendship.

He also posted an e-mail he received from a colleague in
which Ware was described as someone with “a well-earned reputation for
laziness” looking for an opportunity “to burnish his credentials with the left
and atone for his past indiscretion(s).”

Not surprisingly, Whelan has alreadycriticized
Ware for his “badly confused” ruling. If anything, Whelan seems even more committed
to making the case for vacating Walker’s decision.

And unfortunately, it appears that the supporters of Prop
8 are looking to appeal
Ware’s decision, ensuring that Whelan will continue tospout his ridiculous legal opinion for the
foreseeable future.

It’s unclear if Whelan actually believes that he
has a shot of convincing any respectable judge to vacate Walker’s decision. As
Ari Ezra Waldman, Teaching Fellow at the California Western School of Law in
San Diego, points
out, Whelan’s crusade against Walker may just be part of the effort to
delay marriage equality for as long as possible:

The Prop 8 proponents know that
they are fighting a losing battle -- their attorneys were inept at trial,
failing to offer evidence; they have no real arguments on their side; all three
judges on the Ninth Circuit panel to hear the standing and merits were
skeptical. The only hope is to delay, to delay same-sex marriage for so long,
to frustrate the gay community so much, that we make the first mistake.

One thing is clear, though. Ed
Whelan is a tireless ideologue whose legal commentary shouldn’t be taken
seriously by anyone.